FEDERAL ELECTION COMMISSION

Washington, DC 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Fight for the American Dream PAC ) MUR 7781

 and Megan Troy in her official capacity as Treasurer ) 

 ) 

STATEMENT OF REASONS OF CHAIRMAN ALLEN J. DICKERSON

AND COMMISSIONER JAMES E. “TREY” TRAINOR, III

I. INTRODUCTION

This Matter arose from a complaint alleging that Fight for the American Dream PAC and 

Megan Troy in her official capacity as treasurer (FFAD) made prohibited in-kind 

contributions to Mondaire for Congress (Committee) by republishing Committee campaign 

materials.1 We joined Commissioner Cooksey in declining to find reason to believe (RTB) that 

FFAD violated the Federal Election Campaign Act of 1971, as amended (FECA or Act), by 

making an excessive in-kind contribution and failing to report an in-kind contribution.2 We

write separately to explain why we also voted to dismiss allegations against FFAD as an 

exercise of the Commission’s prosecutorial discretion under Heckler v. Chaney.3 The reasons 

explained here also support our votes declining to find RTB in this matter. 

In our view, FECA’s plain text precludes treating a public communication that 

republishes campaign materials as an in-kind contribution, absent coordination.4 But a 

Commission regulation (11 C.F.R. § 109.23) implicitly reads coordination into every instance 

of republication, regardless of whether coordination has occurred. We believe that this is 

contrary to law, and that—when the Commission enforces the remaining republication 

provisions—it must establish actual coordination using the same standards applied to any 

other form of public communication. Because the record did not support finding coordination 

1 See generally Complaint, MUR 7781 (Fight for the American Dream PAC) (Aug. 17, 2020); First 

General Counsel’s Report (FGCR) at 1-2, MUR 7781 (Dec. 18, 2020). 2 Certification ⁋ 3, MUR 7781 (Feb. 15, 2022) (reflecting that the Commission declined, by a vote of 3-

3, to find RTB that FFAD violated 52 U.S.C. §§ 30116(a)(1)(A) and 30118(a) and 11 C.F.R. § 110.1(b)(1) 

by making an excessive in-kind contribution and violated 52 U.S.C. § 30104(b) and 11 C.F.R. § 104.3(b) 

by failing to report an in-kind contribution). Commissioner Trainor joined Commissioner Cooksey in 

voting to find no RTB that FFAD violated the Act, id. ⁋ 2, and joins Commissioner Cooksey’s statement 

of reasons explaining that vote in full.

3 Id. ⁋ 1 (reflecting our vote to dismiss the allegations that FFAD violated 52 U.S.C. §§ 30116(a)(1)(A) 

and 30104(b) and 11 C.F.R. §§ 110.1(b)(1) and 104.3(b) pursuant to the Commission’s prosecutorial 

discretion under Heckler v. Chaney, 470 U.S. 821 (1985)). 4 See Interpretive Statement of Chairman Allen J. Dickerson (Mar. 24, 2022). 

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MUR 7781 (Fight for the American Dream PAC) 

Statement of Reasons

Page 2 of 4 

here, pursuing enforcement against FFAD would have subjected the Commission to 

significant litigation risk. Accordingly, we voted to dismiss the contribution-by-republication 

allegations against FFAD pursuant to the Commission’s authority under Heckler. 

II. FACTUAL BACKGROUND

FFAD produced and distributed four thirty-second Facebook video ads supporting 

Mondaire Jones’s candidacy in the 2020 Democratic primary election for New York’s 17th

Congressional District.5 The ads incorporate b-roll video from the Committee’s YouTube page 

and photos from the Committee’s website.6 The entirety of the visual content in one of the 

ads was Committee b-roll footage or photos, while such material comprised 14 to 16 seconds 

(or 47 to 53 percent) of the visual content in the other three ads.7 “The Complaint does not 

allege that the Committee coordinated with FFAD regarding these advertisements, nor does 

the record include sufficient information to support a reasonable inference that such 

coordination occurred.”8 FFAD reported the ads as independent expenditures.9 

The Commission’s Office of General Counsel (OGC) recommended finding RTB that

FFAD violated 52 U.S.C. § 30116(a)(1)(A) and 11 C.F.R. § 110.1(b)(1) by making an excessive 

in-kind contribution and violated 52 U.S.C. § 30104(b) and 11 C.F.R. § 104.3(b) by failing to 

report such contribution.10 To support this recommendation, OGC relied upon 11 C.F.R. § 

109.23(a), which it cited for the proposition that republication of campaign materials is 

considered a contribution for purposes of the contribution limitations and reporting 

responsibilities of the person making the expenditure.11 OGC “d[id] not make any 

recommendations regarding the Committee receiving an in-kind contribution from FFAD.”12

III. APPLICABLE LAW

FECA distinguishes between contributions (which are subject to amount and source 

limitations and are reportable by the candidate) and expenditures (which are not subject to 

amount or source limitations and are reportable by the spender). The Act provides that “the 

financing by any person of the dissemination, distribution, or republication, in whole or in 

part, of any broadcast or any written, graphic, or other form of campaign materials prepared 

by the candidate, his campaign committees, or their authorized agents shall be considered to 

be an expenditure....”13 Such expenditure is considered a contribution to a candidate when it 

is ‘‘made by any person in cooperation, consultation, or concert, with, or at the request or 

suggestion of’’ that candidate, their authorized committee, or their agent.14 Thus, only if a 

person cooperates or consults with a candidate or committee on an expenditure (i.e., only if 

5 FGCR at 2. 6 Id.

7 Id. at 2-3.

8 Id. at 2, n.1. 9 Id. at 3. 

10 Id. at 9. 11 Id. at 4 (citing 11 C.F.R. § 109.23(a)). 12 Id. at 2, n.1 (citing 11 C.F.R. § 109.23(a)). 13 52 U.S.C. § 30116(a)(7)(B)(iii) (emphasis added). 14 Id. § 30116 (a)(7)(B)(i).

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Statement of Reasons

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the expenditure is “coordinated”) does that expenditure become an in-kind contribution under 

FECA. 

FECA does not define coordination, but two Commission regulations attempt to address

it (including in the republication context). First, 11 C.F.R. § 109.21 sets out a three-prong 

test for whether a public communication is a “coordinated communication”15 based on the 

source of the payment (the payment prong), the subject matter of the communication (the 

content prong), and the interaction between the person paying for the communication and 

the candidate or political party committee (the conduct prong).16 A public communication 

must satisfy all three prongs to qualify as “coordinated” under this test.17 

Second, 11 C.F.R. § 109.23 states that the republication of campaign materials “shall be 

considered a contribution for the purposes of contribution limitations and reporting 

responsibilities of the person making the expenditure.”18 The benefitting candidate “does not 

receive or accept an in-kind contribution, and is not required to report an expenditure, unless 

the dissemination, distribution, or republication of campaign materials is a coordinated 

communication under 11 CFR 109.21. . ..”19 But, as has been explained elsewhere,20 the 

regulation ignores the Act’s statement that republished campaign material is an expenditure, 

and not a contribution. Nor does § 109.23 require coordination in order for the person who 

republished the campaign materials to be considered to have made a contribution. We believe 

that this contradicts FECA’s requirement that—in order to become a contribution to a 

candidate—an expenditure must be ‘‘made . . . in cooperation, consultation, or concert, with, 

or at the request or suggestion of’’ that candidate, their authorized committee, or their 

agent.21

IV. ANALYSIS

In determining whether to pursue enforcement, the Commission has prosecutorial 

discretion as described in Heckler v. Chaney.22 When exercising that discretion, it is 

incumbent upon us to “not only assess whether a violation has occurred, but whether agency

resources are best spent on this violation or another, whether the agency is likely to succeed 

if it acts, whether the particular enforcement action requested best fits the agency’s overall 

policies[,]”23 and other factors.

To the extent that 11 C.F.R. § 109.23 treats non-coordinated republication as an in-kind 

contribution, this regulation contradicts FECA’s text and is therefore contrary to law.24 We 

15 11 C.F.R. § 109.21. 

16 Id. § 109.21(a).

17 Id.

18 Id. § 109.23(a).

19 Id.

20 See, e.g., Interpretive Statement of Chairman Allen J. Dickerson (Mar. 24, 2022). 21 52 U.S.C. § 30116 (a)(7)(B)(i). 22 470 U.S. at 832. 23 Id. 24 Interpretive Statement of Chairman Allen J. Dickerson (Mar. 24, 2022).

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Statement of Reasons

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are not alone in observing this legal infirmity.25 Thus, in order to remain faithful to our 

enabling legislation, when the Commission enforces the republication provisions, it must 

establish actual coordination using the same standards applied to any other form of public 

communication. Failing such a finding, the independent republication of campaign material 

is just that: an independent expenditure. 

Here, “[t]he Complaint does not allege that the Committee coordinated with FFAD 

regarding the[] advertisements, nor does the record include sufficient information to support 

a reasonable inference that such coordination occurred.”26 Absent the requisite coordination, 

FFAD’s republication of Committee materials is an independent expenditure—just as FFAD 

reported.27 Were the Commission to pursue enforcement on the theory that FFAD’s noncoordinated republication of Committee materials was an in-kind contribution, it seems to us

highly probable that a reviewing court would simply invalidate § 109.23 as directly 

contradictory to FECA. At the very least, a court would likely conclude that the regulation 

could not be lawfully applied in this Matter. 

Accordingly, we voted to dismiss these allegations under Heckler.28

April 11, 2022 

Date

___________________________

Allen Dickerson

Chairman

April 11, 2022

Date

___________________________

James E. “Trey” Trainor, III

Commissioner

25 See generally Statement of Reasons of Vice Chairman Petersen and Comm’rs Hunter and Goodman 

at 2, n.4, MURs 6603, 6777, 6801, 6870, and 6902 (Ben Chandler for Congress, et al.) (Dec. 17, 2015). 

See also Interpretative Statement of Comm’r Sean J. Cooksey (Nov. 30, 2021) (concurring in the view 

that § 109.23 is contrary to law because it improperly departs from and conflates the terms 

“contribution” and “expenditure” used in the underlying statute).

26 FGCR at 2, n.1. 27 See id. at 3. 

28 We also question OGC’s tendency to characterize silent “b-roll” footage, which is at issue in this 

matter, as campaign materials (a term that, in our view, is more properly understood as including a 

campaign’s finished advocacy products). See Interpretive Statement of Chairman Allen J. Dickerson

at 4 (Mar. 24, 2022). Because the requisite coordination is lacking, we need not reach this issue here. 

But the regulated community would be well-served were the Commission to standardize and clarify 

its understanding of what constitutes “campaign materials.”

MUR778100065